Baroness Ramsay of Cartvale: My Lords, I have more than a passing sense of déjà vu about arguing yet again against the use of interception material as evidence in court with the noble and learned Lord, Lord Lloyd of Berwick, in this House, this time in the form of a Bill. He was kind enough to say that I taught him all he knew about interception. All I can say is that I could not have taught him very well because I think he is so wrong about this.
	As of now arguments against such use remain, in my opinion, overwhelming and I speak from a background of considerable professional experience in this somewhat arcane field. I am very concerned at the growing clamour for the use of this material as court evidence in the UK, which in a large part results from a very imperfect picture of what intercept entails, what its use in court would reveal and the loss of intelligence capability that would ensue.
	The whole area of intercept is much wider and much more complex in scope and type of operations than most people can possibly imagine; and fortunately that includes those who are the targets of intercept operations because, again and again, transcripts show people assuming, wrongly, that they are secure in whatever means they are using to communicate. The slightest revelation of interception risks blowing for ever the techniques involved and in some cases putting at risk human agents. It not only means the end of that particular operation but, by extension, others which will be surmised to be in place on similar types of targets.
	The extreme vulnerability of intercept to instant loss if revealed or even hinted at is especially true if the material is encoded or encrypted, where often very sensitive technical means and/or human agents are involved, and the loss of access is usually permanent. It is often said, as the noble and learned Lord did in his introduction, that "other countries use intercept evidence in court, why do not we?". There are actually many reasons for that and I shall touch on just a few.
	First, our very sophisticated and extensive expertise in this field is something of which we can all be very proud, but its very sophistication and scope renders it extremely vulnerable. A straightforward police telephone tap on home national territory would likely have little to lose in terms of giving away techniques or endangering sensitive sources and it is that kind of material alone which some other countries permit to be used in court. In some countries that is the only kind of intercept they actually produce and in those others, where more sophisticated techniques are employed by agencies other than the straightforward law enforcement agencies, it is only the more routine product of the law enforcement agencies' warrants that are produced in court.
	Like the noble and learned Lord, I have also discussed in Australia and Washington what they do and do not use in court. In our country, and this leads to my second point, there is an almost unique—I say "almost", but I believe it is unique—closely interwoven relationship between our intelligence and security services and our law enforcement agencies. It is, therefore, much more difficult to disentangle the various contributions of intercept material than it is where there are clear divisions. To use material from the services—which, as I said, is not done even in countries where they use law enforcement agency transcripts—would endanger very sophisticated techniques as well as agents and entail much greater loss than most people realise.
	Thirdly, our legal system with its adversarial roles for counsel, where defence counsel can roam far and wide at the discretion of the judge, means that defence counsel can range very widely on evidence or with someone in a witness box and that, in the case of intercept material, would pose an absolutely unacceptable risk of exposure. It also means enormous burdens of transcribing and preserving all related interception material if it is to be available for court evidence. That would certainly mean a considerable diminution of product from the services concerned, because of the sheer volume of what would have to be processed and kept. I do not wish to go into more detail than that on that point.
	Countries whose legal systems contain investigative judges or magistrates can manage to handle sensitive material without the risks involved in using it in a British court. Before some noble Lord who is a barrister asks me, as I have been asked before more than once in this House, let me say that I am fully aware of public interest immunity procedures and indeed have had considerable experience of dealing with them in my past life and none of them, in my opinion, provides a satisfactory answer to the points I have raised about the use of intercept material in British courts as envisaged in this Bill.
	A further point of difference in our legal system compared to the countries most quoted as using intercept material in court is that we have no statutory obligation on telecommunication companies to co-operate with the intelligence and security services or law enforcement agencies to facilitate interception. That obviously adds another factor of sensitivity about revealing operations.
	After a previous debate in this House, I received a lengthy letter—some seven A4 pages—from an American law professor who courteously informed me that he had copied his letter to the noble Lords, Lord Thomas of Gresford and Lord Judd. The noble Lord, Lord Thomas, has previously quoted some of the professor's points in debates in this House. I have to say that nothing in that letter affects my position of complete opposition to this Bill.
	I should like to make one other general point. It has been said that there can be nothing in principle against using intercept material as evidence.
	I agree with that statement. This is not a matter of principle; it is a question of practicality and the effect of such a move on the efficiency and productivity of the services and agencies engaged in interception. In my opinion, if a list were to be made of any gains from such a move, as against a list of the losses—in productivity, efficiency and security of sources—then the difference in the lengths of those two lists would lead any sensible person to see that the losses far outweighed the gains.
	On the suggestion for a Select Committee, I have to say that I do not see what a Select Committee would do that the Interception of Communications Commissioner, who is entrusted with precisely this task of looking at how the interception is working and overseeing the agencies which are practising it, is not doing on behalf of the Government, and reporting to Parliament about it.
	I should like to conclude by quoting the present Interception of Communication Commissioner's recently published report for 2004, which I am sorry that the noble and learned Lord, Lord Lloyd of Berwick, did not quote from. In dealing precisely with Section 17 of the Regulation of Investigatory Powers Act 2000, which is the object for amendment in this Bill, the right honourable Sir Swinton Thomas says in paragraph 24:
	"The question of the admission of intercept material in criminal proceedings has been discussed at some length in the course of 2004 between myself and Ministers, the Security and Intelligence Co-ordinator, the security, intelligence and law enforcement agencies and the communication service providers. The aim of all concerned is, of course, to use this material to the best advantage to prevent terrorism and crime, and to apprehend terrorists and criminals. The subject is a complex one, much more complex than at first sight might appear. It is not suitable for lengthy discussion in this Report. I have the considerable advantage in my position of having an overall picture of all those engaged in this work. I am left in no doubt that the balance falls firmly against any change in the present law and that any amendment of Section 17 of the Act would, overall, be damaging to the work of the security, intelligence and law enforcement agencies. I continue, of course, to have an open mind on this subject if any major change should occur in the future".
	I find myself in complete agreement with that paragraph from the Interception of Communication Commissioner's report. I totally oppose this Bill.

Lord Robertson of Port Ellen: My Lords, although I intend to speak from my past, not current, experience, I should say, whether relevant or not, that I am deputy chairman of Cable & Wireless, a telecommunications company in the United Kingdom. I am delighted to follow the noble and learned Lord, Lord Ackner, who has made a devastating contribution to the proceedings here today. He has allowed me to be briefer than I intended to be. The words of the interception commissioner, as expanded upon in his letter to the noble and learned Lord, Lord Ackner, should be read carefully by all who are interested in this subject.
	The proposition is superficially attractive. It seems to some people to be self-evident that it will facilitate the conviction of some evil and dangerous people, whether terrorists or organised criminals. To the outside eye, it can look sensible if we can, through some sophisticated supervised sieve, make available in court what can appear on the face of it to be damning evidence of wrongdoing. But that is a superficial attraction. The issue is much more complex and the downside of this proposal outweighs the benefits that it might bring. Indeed, the proposal is mistaken, misguided and, in certain circumstances, dangerous.
	Those of us who have held the highest offices of state—I was Secretary of State for Defence—become part of a unique and tight intelligence community. We therefore become privy to knowledge of, and responsibility for, a wide range of methods for collecting sensitive and secret information. I find that is a sobering and onerous burden to accept at the time and to carry it to the end of our lives. From my experience, I pay tribute to the professionalism, tenacity, ingenuity and, very often, sheer gut courage of so many of those in British intelligence services who safeguard our security. They deserve, and should get, our gratitude and commendation, and when, as in this case, they have a unanimous opinion, we should pay careful attention to what they say.
	I take seriously my obligation to protect both what I have come to know in the Ministry of Defence in the British Government and the other information and intelligence, including that from foreign sources, to which I had access while serving as Secretary-General of NATO. I shall share no secrets with the House today, although from my long years in the House of Commons, I recall that it was usually quite safe to disclose the most sensitive information in Parliament, because you could be absolutely sure that no one was listening to you.
	I just wanted to make a couple of points to the House and to the noble and learned Lord, Lord Lloyd, in particular, who also knows more than he can share with the House today, to show that this is a profoundly misguided and possibly counterproductive route to go down. The methods used to intercept communications are varied and many of them ingenious. All are legal, but many are very sensitive indeed. If those methods were to become known, however restricted the audience was that got to know of them, those sources would be compromised and, in many cases, probably ended. Not only that, but the lives and safety of those involved in such communications methods might be compromised or threatened.
	I am not an expert in English law, but the principle of discovery is built into that law and our interrogative and confrontational system. If one element of evidence is put into court, it will be simply a matter of time, logic or even fairness that all the intercepted information is placed outside the protected world where it had previously resided.

Lord Thomas of Gresford: My Lords, what case does the noble Lord have in mind where the defence has ranged far and wide and introduced matters that have national security?

Lord Robertson of Port Ellen: My Lords, I am not in a position to give a precise answer to that, but I recollect that recently there was a case where some form of intercept material was put into court and the judge decided that all the material, not simply the extract that was relevant, had to be transcribed and be part of the court's evidence. I am merely postulating what might happen if the current restrictions were lifted. The words of the intercept commissioner should be listened to carefully, because he is also an eminent lawyer. We would open a Pandora's box.

Baroness Park of Monmouth: My Lords, the noble Baroness, Lady Ramsay, has said it all—at least, I thought that she had until I heard the noble Lord, Lord Robertson. I sit in the same corner as them. Although I greatly respect the noble and learned Lord, Lord Lloyd, for the brilliance with which he conducted the Gulf War inquiry, I cannot support the Bill.
	I am not alone in resisting any proposal that could risk compromising intelligence collection and its methods. The Privy Counsellor Review Committee, which is clearly concerned that intercepted communications can never, at present, be used evidentially, recognises:
	"It is important that making intelligence available for prosecution does not compromise the collection and use of intercepted communications for intelligence services".
	The Interception of Communications Commissioner, who has been widely cited—including by the noble and learned Lord, Lord Lloyd—the right honourable Sir Swinton Thomas, stated categorically in his 2004 report that he is,
	"left in no doubt that the balance falls firmly against any change in the present law and that any amendment . . . would, overall, be damaging to the work of the security, intelligence and law enforcement agencies".
	He recognised that,
	"interception played a vital part in the battle against terrorism and serious crime, and one that would not have been achieved by other means".
	We cannot afford to lose that means.
	Further, both the commissioner and the Privy Council believe that either the disclosure of the number of the warrants issued in the interests of national security would be against the national interest if it helped agencies hostile to the state to estimate even approximately the extent of the interception of communications for security purposes. Sir Swinton Thomas agreed with his predecessor, the noble and learned Lord, Lord Nolan, that disclosures in that area would be prejudicial to the public interest. If they are as worried as that about disclosing only the number of warrants and the extent of the coverage, how much more must we be concerned about the content?
	The Intelligence Services Commissioner in his 2004 report, is equally opposed to public disclosure of the number of warrants issued to the agencies because that would,
	"assist the operation of those hostile to the state if they were able to estimate even approximately the extent of the work of the Security Service, SIS and GCHQ in fulfilling their functions".
	We already have several well informed and serious bodies studying the issue that are able to make a just balance. Of course there is a degree of concern that probably motivates the wish of the noble and learned Lord to make that delicate and hard-won material evidential for the sake of the human rights of the defendant. Sir Swinton Thomas cites the Investigatory Powers Tribunal as follows:
	"Everyone has the right to respect for his private and family life, his home and his correspondence . . . There shall be no interference by a public authority with the exercise of this right except such as it is in accordance with the law and is necessary in a democratic society in the interests of national security . . . or for the protection of the rights and freedoms of others".
	Let us remember that there are a number of issues involving human rights, not only the human rights of the man or woman on trial.

Lord Goodhart: My Lords, I am grateful to the noble Baroness for giving way. Does she not appreciate that the defendant's human rights are not affected. The rights of the defendant are in no way affected by evidence against him being withheld. This is not a question of the human rights of the defendant, it is the efficacy of the prosecution with which we are concerned.
	We want a more effective prosecution here, not an improvement of the defendant's human rights.

Baroness Park of Monmouth: My Lords, I thank the noble Lord for that intervention and am very glad to hear that that is the reason for his position. However, many people's argument has been, and will be, that the defendant has a right to know everything that exists in evidence against him so that he may defend himself. That is the issue and it is also an issue of law.
	My concern is, as the ruling that I have just quoted says, the protection of the rights and freedoms of others, among whom I count the human agent, who in at least some of those cases will have been the means of securing access to the plans and communications of those planning or executing terrorism. As Sir Swinton Thomas says:
	"The task of the agencies working in this field has become more difficult and complex as a result of the proliferation of mobile telephones and the greater sophistication of criminals and terrorists".
	Things have moved so far since I knew anything about it that I do not even know what "IB" means. That may indicate that things have moved on. The hostile intelligence use of encryption is a great problem. There will be times when the key to that can be secured only by the penetration of a group by an agent. I can assure noble Lords that, if we have that type of evidence, the defence will very soon be able to identify who was present at a particular meeting in Hamburg on a particular day and to identify the person who was slightly unlike the rest of them.
	In this complex world of a fast-moving communications industry and an increasing number of targets who develop highly sophisticated expertise in inventing counter-interception measures, we cannot afford to use intercepted communication in court, even in camera. A good defence lawyer and a sophisticated defendant could very soon set in motion enquiries that could, if a human source were involved, lead to the identification of that source, the end of that intelligence product and, probably, of the agent. Sources take years to infiltrate hostile terrorist groups. We have to be blunt and point out that at least some of those groups will speak esoteric, very unusual languages. It takes a lot of time, not only to acquire the languages but to acquire the approach, the access and the ability to move in that particular world. Sources cannot be replaced for many months, if at all. Coming back to the judgment that I quoted from the Investigatory Powers Tribunal, agents as well as defendants have human rights. The defendant will have the whole majesty of the law there to protect his rights—the agent will not; and, not least, the public will lose vital protection.
	In the face of the resistance to the Bill from such distinguished legal authorities as Sir Swinton Thomas, the noble Lord, Lord Carlile of Berriew, and the special committees involved daily in assessing the situation, risks and needs, with their experience of the problems of dispensing justice under threat from terrorists, I do not believe that we should change the law. It is vital that we recognise that this world is not like the criminal world. I fear very much that people will say, "Why don't we start with the criminal world?" but the same problems do not arise. Once you open a door, the door opens wider and wider and precedents are set. Although I deeply respect the noble and learned Lord and his motives, I urge the House to recognise that this is a very dangerous path to tread and we should not require it to be trodden.

Lord Brennan: My Lords, I naturally respect the noble Baroness's views, but I do not recollect from Sir Ian's speech that he made that distinction. Whether he did or did not, he merely provokes the opportunity for debate. On the status of the interception commissioner, the noble Lord, Lord Carlile, and those who are privy to information that influences their views, I am afraid that I take a very simplistic parliamentary view. Within proper constraints of security of information, it is ultimately for Parliament to decide those matters and not those who my noble friend Lord Robertson called the unique and very tight intelligence community—brave, sophisticated and vital as it is.
	Finally, the question of whether Parliament should debate this issue arises. If those who have spoken in favour of the present system are right, they may prove to be right in subsequent debates. If change is to be made, I am sure that the House would consider it with great prudence and considerable reserve. But, at the very least, if we are to accept that the rules of the game have changed and if we are to acknowledge that the campaign against terrorism demands action by all, above all it demands at least consideration by this Parliament.

Lord Lyell of Markyate: My Lords, I am very glad to follow the noble Lord, Lord Brennan, who has reminded the House that we are dealing with an extraordinarily difficult issue on which there are very respectable views on both sides of the argument. I grew up in parliamentary terms starting in 1979 as Parliamentary Private Secretary to Sir Michael Havers when he was Attorney-General. Very slowly, I was let into some small part of the secret world in which others in this House have moved much more widely. I think, of course, of my noble friend Lady Park and the noble Baroness, Lady Ramsay with enormous respect in that regard. I express my thanks to the noble and learned Lord, Lord Lloyd of Berwick, for initiating this extremely important debate. I approach his Bill with great caution, but I approach it in very much the same way as the noble Lord, Lord Brennan. This is an area where genuine inquiry is justified—inquiry in a very careful and, if necessary, secret way. But it is a matter for sincere discussion.
	I have grown up as a lawyer with most of the great lawyers sitting in the Chamber. I have been led by them. I have been in long cases with or against them. I have a very high regard for Sir Swinton Thomas. I am also a member of the Inner Temple. When I find that there are differences of view between him and the noble and learned Lords, Lord Ackner and Lord Lloyd, I realise that we are in very sophisticated country. When I became Solicitor General and, ultimately, Attorney-General, I was allowed a rather more penetrating look into small portions of this world.
	If you regard the whole security services world and the whole criminal justice world as a cake, there are some who see slices of it, but I suspect that the noble Baroness, Lady Ramsay, and my noble friend Lady Park, have seen perhaps a very large part of the cake. But I doubt if there is anyone in the world who sees the whole cake. The need-to-know principle applies as one of the ways of protecting it. But that does not mean that Parliament should not be entitled, in a careful and sensible way, to investigate.
	I worked closely when he was a prosecutor, and briefly when he became Director of Public Prosecutions, with Sir David Calvert-Smith, who is a lawyer of the highest integrity and intelligence. He believes that in some cases—it is always only to be some cases—this might be of genuine assistance, without causing disproportionate damage and, I hope, without causing any damage whatever to the security services. The fact that Sir David believes it so sincerely, that Sir Ian Blair believes it and that the Newton committee regard it as a strong case means that we have a very real argument for moving cautiously forward, giving this Bill its Second Reading and getting it into a Select Committee.
	I do not express any opinion beyond that stage on whether, ultimately, I would vote for or against the Bill. I would certainly require the very strongest safeguards, but I do not take the view, which the noble Lord, Lord Brennan, put well, that because you look at some aspects and dare to peep through the door, the door will necessarily swing open. As he rightly said, we see some communications, but we do not see all communications, and we never should. I know a good deal about the problem of disclosure. During my period on watch as Attorney-General, the issue of public interest immunity certificates was rightly put under strong scrutiny in a wide variety of areas. It is not easy, particularly when you have to have accredited counsel who are not acting for the defendant, but who are coming in as intermediaries to try to see fair play. Because they are security cleared they can see more material than could possibly be properly disclosed to defence counsel or defence solicitors who, by the nature of their role, would have to reveal it to their client. They, certainly, could not necessarily be relied on not to reveal it because they would feel a very strong conflict of interest. So we have to be very careful.
	But what are we balancing all this against? It is particularly relevant that this debate is being held on the Friday before we debate the Terrorism Bill on Monday. We are considering this against the backdrop of a world in which—going back four years to the Anti-terrorism, Crime and Security Act 2001, the measure struck down by the Law Lords resulting in the release of the 23 accused from Belmarsh prison—we have actually detained people without trial in this country, in some cases for just over two years, something we had not done since the days of the Star Chamber.
	We have also had a very serious debate about detaining people for 90 days pending charge. A number of our citizens are under control orders. We have to think about placing restrictions on the liberty of the subject in order to protect the people of our nation as a whole in a way that we have not had to consider before. This Bill, which may play a small but significant part in bringing to justice those most likely to be drug runners and what might be thought of as ordinary criminals, but possibly also those in the terrorist world, may help us to be more proportionate in how we take away liberty without any form of trial at all.
	I conclude by making a simple point. While it is obvious that noble Lords who have worked in the security services feel passionately about this, and while Sir Swinton Thomas obviously feels passionately that we dare not open the door at all, we should give the Bill a Second Reading and move for it to be brought before a Select Committee. We should then think very carefully about what we learn from that committee as to whether we allow it to go further. The Government certainly have control of the Bill. It would be difficult for this measure ever to become law unless the Government are convinced, because it would certainly be defeated in another place. However, this is a serious debate and I hope that it will be allowed to continue.

Lord Thomas of Gresford: My Lords, I entirely follow the noble Baroness's point. Indeed, I propose to deal with it shortly; I am just leading up to it, and I am making that preliminary point before getting into the argument and grapple with the points that the noble Baroness has raised.
	Intercept evidence is not admissible, but directed or intrusive surveillance or the use of covert human intelligence under Part 2 of the Regulation of Investigatory Powers Act 2000, can be. So, for example, there is no problem about a member of the security services breaking into somebody's home and planting a bug there or for the product of that particular piece of covert surveillance being used in court. If a person's car is bugged, there is no problem in producing a record of the conversations that take place within the car. So, on the one hand, there is total prohibition on intercept evidence, and, on the other, you can use foreign intercept evidence and the product of surveillance freely in the courts of this country.
	If government agencies intercept your communications legally, not just the content but the very existence of such data cannot be mentioned in a court of law. The interception cannot be used to provide evidence either. There are these drawbacks. A prosecution may not proceed because the only evidence is intercept evidence. It may be very strong, perhaps a confession or an admission. It may be part of a conspiracy that is going ahead, which could be fully proved by intercept evidence. However, because of this absolute prohibition, it cannot be used, and guilty people get away.
	There is another aspect. The prosecution may not be able to rebut a plausible defence put forward in a trial. It may have intercept evidence in its possession, such as recorded conversations, but it may not use it. It knows the defendant is lying, and that the jury would be influenced if it could hear what the defendant said on the phone or on the Internet, but it cannot use it. People can be acquitted for that reason.
	There is this aspect: the defence does not know of material that undermines the prosecution and supports its case. It does not even know that its conversations have been intercepted and recorded. There could well be material that would acquit it, but it is not admissible and anyway it does not know it exists. Defendants may be convicted quite unfairly.
	Arguments against admissibility have been put forward in this debate. Some of them seem to be founded on a mistaken stereotype, one that causes amusement in this House, as happened yesterday: that of the defence counsel who conducts his case in a malign and dishonest way regardless of the public interest. As the noble Baroness herself said, the defence counsel may range far and wide in an adversarial contest. There could be unacceptable disclosure of techniques by reason of the way he conducts his case. The noble Lord, Lord Robertson, said that "clever lawyers will find a way" around anything put in their way that would protect sources, and so on.
	As I have said on previous occasions, that is a total distortion of what actually happens in court. When I asked the noble Lord, Lord Robertson, whether he could tell me of a case where defence counsel has extracted information that has been to the detriment of the security of this country, he was unable to do so. These are stereotypes that have no foundation in reality.
	It is said that the use of the material will disclose interception techniques and capabilities and may give rise to counter-measures by criminals or terrorists, which might greatly reduce the utility of that resource. For centuries, though, the courts have been quick to protect informers, and to ensure that the names of informers are not revealed in court. We are in a different world and technology has developed, but the court still has complete power, through the use of public interest immunity applications, to protect from disclosure information that is not in the public interest. If the judge were to hear it being put forward by a prosecuting counsel that, "If this information goes in, it will damage the security services", he can say: "It will not go in". He has control.

Lord Cope of Berkeley: My Lords, once again the noble and learned Lord, Lord Lloyd of Berwick, has raised a most interesting debate, even if he has chosen the slightly unusual vehicle of a Private Member's Bill in which to put if before your Lordships' House.
	When I previously debated this matter with the noble and learned Lord and others five years ago on the Regulation of Investigatory Powers Bill—which is now an Act, of course—it was clear that there was a serious case to answer. The noble and learned Lord has expressed it again today with his usual clarity and forcefulness. However, it is also clear that there is a very considerable body of well informed opinion which takes the opposite view and which we should also respect, and which was expressed most clearly today by the noble Baroness, Lady Ramsay, the noble Lord, Lord Robertson, and my noble friend Lady Park of Monmouth. The background to what is an apparently simple question is very complex, both legally and technically.
	We all know that technical progress regarding mobile phones and communications more generally races ahead. That has been referred to by several noble Lords in the course of this debate. Sometimes these changes no doubt help the security services but sometimes the reverse is the case. We can be sure that, like the security services, criminals and terrorists devote a great deal of expert time and effort to getting and staying a jump ahead. I do not know whether there are at present effective methods of tapping communications on the Internet, which seems to be the coming method of communicating. If such methods exist, I do not know whether they will count as intercepts or "bugs" for evidential purposes. They could fall either side of the line. There is, after all, a distinction between evidence obtained from telephone intercepts and that obtained from telephone bugs, as the noble Lord, Lord Thomas, said. The difference between the two is very slight but the difference regarding how they can be used in court is total. Much more difficult problems will arise in regard to e-mails, blackberries and all the other latest devices. I do not know whether the Minister will be able to give us more information about how those newer methods of communication will be affected by the measure, and perhaps it would be best not to publicise that, but the answer affects whether the Bill has any value because if the newer methods of communication are not open to the same problems, the Bill will not be of much value.
	As has emerged clearly in the debate, the balance that we have to assess is whether there are many cases of serious criminals and terrorists who avoid conviction because of the restrictions on the use of this evidence on the one hand and whether the disclosure of the methods which would result from the use of such evidence would damage the ability of those who protect us to go on doing so as effectively as they do. Neither of those questions can really be judged by outsiders in public. Those involved in prosecutions can judge whether many prosecutions will fail on those grounds—we have not heard much evidence on that today one way or the other—but only those involved in the security services and the intelligence world can judge whether the effectiveness of protection would be damaged.
	I echo the tribute that the noble Lord, Lord Robertson, paid to those who work in the security and intelligence services and the whole of that world. They are immensely brave, have high expertise, and we rely on them a very great deal. In considering their objections to the measure, such contacts as I have had with them leads me to make the following point.
	I do not believe for one moment that anyone involved in the intelligence and security world would wish to do anything that would prevent terrorists and, for that matter, serious criminals, being convicted. On the contrary, their whole lives and expertise are devoted to trying to get people into court and to stop them doing the things they are attempting to do. They have no interest in prosecutions not succeeding for whatever reason. They spend their lives trying to ensure that they succeed, and that the terrible things, whether resulting from crime or terrorism, which might otherwise happen, do not do so. They are not on a different side regarding whether or not people should or could be prosecuted successfully. As I say, the legal matter and that of potential damage to the effectiveness of protection cannot really be judged by outsiders. I am certainly an outsider these days. I was a bit of an insider a decade and a half ago when I was a security Minister in Northern Ireland and dealt with these matters, but whatever I was at that point, time and technical progress certainly make me an outsider now. My provisional opinion is that we should consider very carefully the views of those involved in the intelligence world.
	My other point concerns the vehicle of a Private Member's Bill. It is certainly an unusual vehicle. We shall no doubt discuss the issue again on other occasions. The noble Lord, Lord Goodhart, has promised to discuss the matter next week when we debate the Terrorism Bill. I am sure that on that occasion we shall discuss the measure in terms of the terrorist connection. There is a problem with Lords' Private Member's Bills generally. They are virtually always sterile anyway. I have to be careful not to criticise Commons' procedure. However, it is a fact that no Private Member's Bill starting in the Lords can succeed unless there is not a single word of discussion on it in another place. It is most unsatisfactory that any Bill should pass into law without a word of discussion in the elected House. However, that is an issue between the two Houses which would repay examination and is to a certain degree incidental to today's debate. The purpose of the noble and learned Lord, Lord Lloyd of Berwick, in proposing a Private Member's Bill is to get it into a special Select Committee. However, as has been pointed out, notably by the noble Baroness, Lady Taylor, it has already been considered—and can, indeed, be considered again in the wider context—by the Select Committee of another place. Therefore, we should hesitate before setting up such a committee. In any case that is a matter which will in due course come before the Liaison Committee if it is to be pursued.
	The whole issue of the use of intercept evidence is a matter that we have debated before. It is clearly a matter that we shall debate again, and it is a matter of importance. However, it is not one that we should rush into. It is a much more technical and deeper matter than it first appears. I await the Minister's reply with the greatest interest.

Lord Goodhart: My Lords, it is clear from the response to the Question asked by the noble Lord, Lord Clinton-Davis, on Wednesday that the protection of the earnings of lawyers is not exactly a popular cause, particularly perhaps on the government Benches. However, in moving this Motion, we are not making what I might describe as a trade union case for the benefit of lawyers; we do not see fees as a sacrosanct issue. We accept that the very high cost cases—or VHCCs—are out of control and we agree that it is wholly unacceptable that 1 per cent of cases accounts for 50 per cent of the cost of criminal legal aid.
	We do not object to across-the-board cuts in fees paid to Queen's Counsel, and we have made it clear that we would oppose legislation, which was at one time proposed, to give judges a specific exemption from pension boards. But we are concerned about cuts in fees to the less affluent, and in particular young, lawyers. I am very pleased to see that the noble and learned Lord the Lord Chancellor is here to speak for the Government on this issue and that he has not left it to anyone of lower status.
	The Government made it clear in their Explanatory Memorandum attached to the order that the problem arises from the fact that the DCA is in the course of overspending its funds on criminal legal aid by about £130 million and that it is being forced to find savings. It is also clear that the overspend is due not to the rapacity of defence lawyers but to a number of causes. Those include the increase in the number of possible offences as a result of legislation over the past few years—for example, the annual criminal justice Acts and the annual immigration and asylum Acts; the increased cost of cases as a result of new rules which increase the amount of work, such as the need to argue whether hearsay evidence is admissible; the need to argue whether a previous record should be put in evidence; and the increased requirement of disclosure of documents.
	Most fee rates have in fact been frozen for the past eight years, resulting, on the basis of computations made by the General Council of the Bar, in a reduction in fees over that period in real terms of no less than 24 per cent before we take into account the further cuts. Lawyers now find that their fees are being cut by an additional £28 million a year. The Government regarded dealing with that shortfall as so urgent that the order was brought into force on 3 October, when under the normal rules it should not have been brought into force until 12 October.
	In answering the question put by the noble Lord, Lord Clinton-Davis, the noble and learned Lord, in his initial answer, referred only to the intent to reduce the costs of the VHCCs. That is, of course, not the whole truth. The order reduces the fees payable in VHCCs, but it goes far beyond that. In particular, it cuts fees in graduated fee cases—that is the medium-length criminal trials—as well. I do not propose to go into the details of the order, which is exceedingly technical and very detailed, but it is clear what has happened. The fees for some cases have not been altered—for example, the fees for junior counsel in trials lasting up to 10 days—but some have been altered very substantially. That is so for barristers dealing with cases that last from 11 to 40 days which are the graduated fee cases.
	Considering the cases where no QC is instructed—cases that are most likely to involve younger barristers—according to tables produced by the General Council of the Bar, for some 25-day cases, for example, fees may be reduced by as much as 50 per cent; for 26 to 40-day cases the daily fees are reduced depending on the type of case by amounts ranging from £280 to £400 per day. Those are massive cuts. The figures before the cuts were made—let us say £20,000 for a 25-day, five-week trial—look, at first glance, high, but the graduated fund cases involve a great deal of preliminary work, paid at a lower rate or not paid at all. Barristers' fees are not all income; some 20 to 25 per cent goes on rent, travel and other expenses; and barristers do not step from one 25-day case to another. On many days, they are not in court at all or they deal with shorter and less well-paid matters.
	Young lawyers are, of course, paying off debts incurred such as university tuition fees and fees for vocational training. Notoriously, the first few years in practice are, as they always have been, very difficult for many. I doubt whether young lawyers, dependent on criminal legal aid, are doing nearly as well as young general practitioners. The cuts have led to such discontent that in October there was even a tentative attempt at a strike which fizzled out. A barristers' strike is not something that we on these Benches would encourage or glorify, but it is not surprising that there was great disquiet. Most members of the criminal Bar are, in effect, public servants. What other public servants would have had large cuts imposed on them after eight years of a pay freeze and, if such cuts were made, what would be their reaction? I believe that there is a real danger that able young law students will avoid criminal work altogether and if they go into it, they will leave for better paid sections of the legal profession or will leave the profession altogether.
	About three weeks ago, Vera Baird, a Queen's Counsel and a Member of the House of Commons, and someone for whom I have a very high regard indeed, made a very powerful speech in a Westminster Hall debate which she introduced on the subject of criminal legal aid. Some of the points that I have already made were borrowed from her speech. As she said in that debate, she comes from a modest background, and she is concerned to ensure that the Bar, which was her branch of the profession, will continue to be open to people such as her. The cuts will make it more difficult for young lawyers with no money behind them to survive. The Government should listen. Some people say that defence lawyers are there in order to get guilty people off. That is, of course, not true. They are there to ensure that people charged with crimes get a fair trial. That is the principle that lies at the heart of the legal system. These cuts threaten that principle, if not today, plainly in the longer term.
	As I told the Government some time ago, it is not my intention to press the Motion to annul the order. It is only in very special cases that your Lordships' House should annul an order, and I do not see this case as falling within that band. But I instigated this debate because this order is damaging. It raises important issues that should not pass without debate. I hope that when, in due course, the Government receive the Carter report, they will reconsider the cuts in fees and will find other, less damaging, ways in which to recoup their overspend.
	Moved, That an humble Address be presented to Her Majesty praying that the Regulations, laid before the House on 21 September, be annulled (S.I. 2005/2621) [9th Report from the Merits Committee].—(Lord Goodhart.)

Lord Falconer of Thoroton: My Lords, I very much welcome the noble Lord, Lord Goodhart, giving us the opportunity to have a short debate on what I agree with him is a very important measure. I welcome the noble Lord's involvement; he has been a persistent advocate on behalf of Access to Justice over a long period of time. I also welcome very much the involvement of the noble Lord, Lord Cope, although not a lawyer. I do not know why I say "although not a lawyer"—particularly because he is not a lawyer he brings a welcome new perspective to this issue.
	Perhaps I may seek to put the position into perspective. I, like the noble Lord, Lord Goodhart, am a strong supporter of an independent Bar. The crucial areas in which there needs to be an independent Bar are where people cannot afford representation themselves. So, state-funded work is of great importance.
	So far as concerns the criminal Bar, the absence of proper representation leads to miscarriages of justice; and it would be accepted beyond argument that in any criminal case of significance a person is entitled to proper representation in court. That is the underlying basis on which we look at the issues of criminal legal aid.
	As regards criminal legal aid in general—before coming to the points made by the noble Lord, Lord Cope—since 1997, the amount of money going to criminal legal aid has risen by £450 million. A significant proportion of that has gone to advocates in higher court, which means Crown Court cases, which means, primarily, the Bar.
	I am very concerned by what the noble Lord says; that, despite the increases in the amount of money overall going to the Bar, the Bar regards itself as in danger of not getting adequate people at the bottom because of people not coming to the Bar any more. The only way to ensure that is for a proper distribution of that money. Everybody agrees that too much of that money is going to the top, by which I mean going to a small number of cases, which means a small number of barristers. In order to remedy that, there needs to be better distribution.
	I should say, however, that I do not regard it as only the Government's obligation to ensure that that happens. The Bar itself plainly has an obligation to ensure proper arrangements for new entrants at the bottom. The noble Lord, Lord Goodhart, will know as well as I do that many sets of chambers make arrangements for guaranteed fees or payments for people who start at the Bar, which is an extraordinarily good way to ensure that there is an attractive entrance point. That is possible in the context of the earnings of the Bar overall from criminal legal aid having risen substantially during the period that I have referred to. So the overall picture is of criminal legal aid to the Bar rising. Everyone agrees that the distribution is wrong.
	The second point with which I should deal is that there has been a "pay freeze" during that period. I would like to know, but I do not have the information, what are the average earnings of typical members of the criminal Bar. Yes, particular rates have been frozen, but the average position of a barrister is not known. I think that we would find that some barristers' rates have been frozen over a long period, but equally, the earnings of significant numbers of criminal barristers have risen. No information is available as to what is the distribution. It is wrong to suggest, as the noble Lord, Lord Goodhart, did that with the exception of a handful of people who handle very high cost cases, everyone else's earnings have been frozen. That is not the position. We need to focus on how earnings are affected in determining value for money and fair remuneration. Indeed, it is suggested that there is quite a steep rise in the earnings of barristers at the criminal Bar until medium to senior junior level, at which there is a plateau and that it is the plateau that is causing difficulty. That needs further investigation.
	Without boring the House, let me describe what the order does. It does two separate things. First, as the noble Lord, Lord Goodhart, accurately said, it deals with the £130 million overspend, not by seeking to reduce costs by £130 million this year but seeking only £7 million of that.

Lord Falconer of Thoroton: My Lords, there are two separate things. The first is, as it were, the emergency package to deal with the £130 million overspend—although I make clear that it addresses only a proportion of the £130 million. The four things done there are: reducing QCs rates in very high cost contract cases and in one to 10-day graduated fee cases; reducing the rates in 11 to 40-day graduated fee scheme cases for both QCs and juniors; reducing senior solicitor rates in very high cost contract cases; and removing the possibility of an uplift to the prescribed solicitor rates for some offences and, for the remaining offences, restricting the uplift to 100 per cent. Those four things were designed to target the very high cost cases, using that phrase in a non-technical sense to mean cases at the expensive end of the spectrum, which would be very high cost contract cases with a capital 'v' but also high cost cases with a small 'h' and a small 'c'.
	We proposed those changes on 5 July and told the Bar and solicitors that we would consult them and if they thought that there was a better way to target them at the expensive end of the market, we would happily amend the proposals, but within the same financial envelope. Ultimately, both the Bar and the solicitors did not advance any other proposals. Indeed, the position of the Bar was exemplified by a letter dated 26 July 2005 to an official in my department from Mr Andrew Hall. It states:
	"The leadership of the Bar is not prepared to assist the Department in imposing unjustified cuts on the profession".
	It retained that position throughout. There were discussions but ultimately no alternative proposal was formally put.
	The other category of cuts includes cases known as cracks and guiltys. The cracks and guiltys scheme involves moving cases where there is a "guilty" plea or those listed as a "not guilty" plea that turn out to be a "guilty" plea at or before trial. There is a move from assessment after the event on an hourly basis of what the barrister should be paid to something akin to a graduated fee scheme. That saves the balance of the money. That has been discussed in detail with the Bar from last year through to the beginning of this year. It is separate from the arrangements to deal with the £130 million overspend to which the noble Lord, Lord Goodhart, referred.
	All that was done before the noble Lord, Lord Carter of Coles, reported because with the first category of cuts we were in considerable financial difficulty but it was agreed last year that the changes to the second category of cuts would be made last autumn or as soon thereafter as possible. They are both explicable. The critical issue is that we deal with the lack of control in legal aid generally coming from very high cost cases. It is swallowing not just legal aid for normal criminal cases but also civil legal aid. So although there has been an increase in criminal legal aid over the past few years, there has been a decrease in civil legal aid. Since 1997, criminal legal aid costs have risen by 37 per cent while civil legal aid costs, excluding asylum, have fallen by 24 per cent. We must address that just as much as the prices paid for more ordinary criminal cases. We cannot continue to deal with the matter piecemeal as we have done year on year for the past eight or nine years, myself included as Lord Chancellor. We need an authoritative look, particularly at criminal legal aid, that gets the confidence of the professions and ensures an independent Bar and fair remuneration for solicitors. That is why I have appointed the noble Lord, Lord Carter of Coles.
	In the middle of last year, I promised that there would be a review of the graduated fee scheme and the very high costs cases scheme. The noble Lord, Lord Carter, must review those as part of his bigger review. Although I promised it by May this year, it was not set up until July. I regret that, but there has been no failure to deliver a review. It is now part of a much wider review.
	The noble Lord, Lord Cope, is absolutely right that there has been a £450 million increase in criminal legal aid since 1997. He is also right that three reasons for the increase are inflation, increased complexity and a small increase in the number of cases dealt with. But a significant part of it—20 per cent or more—is simply an increase in rates. I will give the detailed figures to the noble Lord, Lord Cope, in a letter and I will put that letter in the Library of the House. There is no regulatory impact assessment in the order because the only figure that one would include would be the amounts saved. We think that that is sufficient.
	I am grateful for the opportunity to make those points. Legal aid, particularly in criminal cases, is a big problem. I very much hope that the proposals of the noble Lord, Lord Carter of Coles, will command respect right around the profession, and that this House will have the opportunity to debate them as soon as possible after he has delivered his report, which must be before 31 January 2006. I invite the House, in those circumstances, to accept the order.

Lord Goodhart: My Lords, I am very grateful to the noble and learned Lord the Lord Chancellor for his reply and for explaining in some detail—much more than it was possible to do last Wednesday—the reasoning behind his proposal. Of course, I am entirely convinced that it is his wish, as well as mine, to see a flourishing legal profession. But the noble and learned Lord has not removed my concerns about the order. He raised the point of criminal legal aid eating into civil legal aid, which many of us have been aware of for a long time. Indeed, it was raised in your Lordships' House on several occasions. It is our view that criminal legal aid, which is demand-led because it is essential that people who are charged with criminal offences must have proper representation, should be ring-fenced. Civil legal aid should have a regular amount. It should not be cut because of increases in criminal legal aid. Civil legal aid is essential for ordinary people's access to justice. We believe that increases in criminal legal aid should be borne out of general taxation rather than at the cost of civil legal aid.
	However, there is no doubt that the total level of criminal legal aid spending has increased substantially, but a large proportion has been siphoned off into those very high cost cases. The position is quite different for the ordinary criminal law barrister who does routine work and not the complex fraud and other cases that eat up so much money. There is no doubt that individual barrister's earnings have gone up as he or she progresses, but that is natural progression for barristers during their careers. They start at a low level of earnings and progress higher.
	I recognise that a number of chambers provide guaranteed income for new barristers, but that is not a substitute for paying proper fees. Indeed, cuts in fees may make it more difficult for chambers to finance that kind of guarantee. So I remain seriously concerned that this order—which quite plainly cuts fees, as is admitted on all sides, by what will be £28 million—will have a significant and damaging effect on the future of the criminal bar. For the reasons that I gave earlier, it is not my intention to press this Motion. I therefore beg leave to withdraw it.

Lord Dubs: My Lords, I beg to move that this Bill be now read a second time.
	At the outset, I should declare an interest. I am just about to sell a house and buy another, which should be made clear before I develop the argument about this Bill. There are an estimated 1.5 million residential property transactions each year. The total value involved is estimated at £232 billion. Buying or selling a property is the biggest financial transaction that many of us have to face. Yet it is highly stressful and buyers and sellers often feel very vulnerable when they embark on that process.
	The Estate Agents (Independent Redress Scheme) Bill will make a simple amendment to the Estate Agents Act 1979 to require all estate agents, whether they are members of a trade body or not, to sign up to an independent complaints procedure. It means that all home movers will be able to access redress without having to resort to court—a point which is very important. Obviously, going to court is open to people now, but it is a cumbersome, expensive process. Surely, we need something simpler and better than that.
	This will be a mandatory registration scheme, and any estate agent who behaves really unprofessionally would not be able to practise if he is found guilty of such unprofessional conduct. I should say now that I am grateful for the help and advice I have received in preparing this Bill, in particular the staff at Which?, who have gone out of their way to provide me with both support and information.
	While it is true that from 2007 every house put up for sale will need a home information pack, and a complaints system will be set up to cover this aspect of the buying and selling process—but only this aspect—my Bill would go much further because it is intended to cover all residential purchases and sales. It is interesting and amusing to consider which groups are the least trusted in Britain. Research published not long ago in the Daily Telegraph showed that estate agents are trusted by 16 per cent of the population. Red-top tabloid journalists are trusted by 14 per cent, while politicians rate slightly higher at 20 per cent, rising to 40 per cent depending on party—I shall not say which—and whether the politician is a Minister or the local MP. Let us face it: we politicians are not very popular, journalists are not popular and neither are estate agents. It is clear that we have to find a way forward from this difficulty, at least with regard to estate agents.
	During the passage of the Housing Bill through this House in 2004, the Government pledged to bring forward proposals that would extend the scope of independent redress schemes for those have cause to make a complaint against an estate agent, but nothing seems to have happened. I refer to an OFT report published in March 2004 which set out a number of recommendations for reforming the industry. In particular it recommended that a statutory redress mechanism should be set up if the industry could not deliver improvements through voluntary codes of practice. The consumer group Which? did not believe that the report went far enough, and nor do I. The industry was given two and a half years to sort itself out. It has failed to do so, even though many in the profession want to improve its image. I shall refer to people in the estate agent industry later in my remarks. Furthermore, the OFT's latest plan for 2005–06 identifies the housing market, including estate agents, as a priority theme.
	It is interesting to note that the Government broadly endorsed the report from the OFT. Perhaps I may mention briefly how they responded to the proposals. One government response stated that a consultation document would be published on how the OFT proposals could be brought into effect, and to see what more could be done to strengthen the regulation of estate agents. So far as I know, that document has yet to materialise. The Government also said that they would use the Housing Act to provide a redress mechanism. They have confined themselves to the proposals as regards home information packs, to which I have already referred. They have not yet found parliamentary time for any further legislation in this area.
	A third suggestion was to work with stakeholders to develop methods to evaluate trends in consumer detriment in this market, along with making the case for an industry qualification and national quality standards for estate agents. I am not aware of any proposals to take this forward. Finally, the Government response stated that they would consult on amendments to the legislation, including measures to make estate agents' dealings with consumers more transparent, and to give the OFT and local trading standards departments further tools to tackle unfair practices and better protect consumers. Again, neither I nor the staff at Which? are aware of any such consultation.
	It is perfectly clear that consumer confidence in any profession must depend on maintaining very high professional standards. That is agreed by estate agents and of course it applies to professionals generally. I turn now to the Ombudsman for Estate Agents. That organisation does provide some redress, but membership is not compulsory and therefore a large number of estate agents do not adhere to the scheme. In any case, anyone disciplined under it is not debarred from practising as an estate agent. By that I mean serious disciplinary measures. So there is no way of preventing anyone either becoming an estate agent or remaining in business as one even if they do not meet any professional standards.
	Currently the level of consumer dissatisfaction with estate agents is very high. I shall not take the time of the House by repeating the many statistics, but it is estimated that in 2004 some 5,500 complaints were brought before the Ombudsman for Estate Agents.
	In addition, probably about 5,000 other people complain to local trading standards officers about the service they receive from estate agents. So, if we assume that there are some 24,000 people employed in estate agencies in the UK, and if we combine the two sets of figures that I have quoted, this represents almost one complaint for every two estate agents—a very high level of complaint.
	The problems faced by consumers cover a wide range of what I call unprofessional behaviour. These include misdescription of property, although that is illegal; providing false information, such as saying that there is planning permission when there is not; financial losses to buyers through charging commission fees when they are not due or colluding with property developers; not informing a buyer whose offer has been accepted that the property has been put back on the market; pressurising a vendor to sell and to accept a lower offer so that someone who is possibly in collusion with the estate agent can buy it; and discrimination through not passing on an offer because a buyer has decided not to use the estate agent's mortgage services. There are examples documented of all these practices. It is clearly unacceptable that consumers should be badly treated in such a way and have limited redress as at present.
	Research shows that fewer than half of those who had bought or sold a home were always happy with the services they received from estate agents. Experiences included 29 per cent who said they were not kept well informed during the process; 14 per cent who said the estate agent incorrectly described the property; and 12 per cent who said that the estate agent had put too much pressure on them. There was little difference in these figures between the experiences of buyers and sellers. All of these practices could lead to financial loss, as well as making an already stressful process even more so. Clearly this is not a desirable situation.
	But some estate agents in the industry have high professional standards. I have had conversations with and received briefings from the National Association of Estate Agents. It has some 10,000 members and probably covers about half the estate agents in Britain. I very much welcome the support it has given to the Bill. Other professional bodies in this area also support the Bill but I do not have that sufficiently well confirmed to be able to quote them.
	The NAEA maintains that it should be a mandatory requirement for anyone practising as an estate agent to belong to an organisation which has minimum entry standards, codes of conduct and a disciplinary system. That is also the aim of the Bill. It is ludicrous that I could set up as an estate agent tomorrow. I have no experience at all, I would not know how to do things properly, and yet there is nothing to stop me doing it.
	The NAEA was very helpful to me and gave me some advice. It advised me that my Bill should be extended to include lettings because there are also quite a number of complaints about rented property, not only purchased property. It clearly is not desirable to ask the House to support the Second Reading of a Bill while saying that I want to add something to it. On the other hand, there are so many precedents of governments of both parties introducing Bills and then introducing many amendments to them that I shall not be too embarrassed about doing so. I believe the House will accept that in good faith.
	The NAEA also advised me that if any of its members act unprofessionally they could in extreme cases be expelled, but that that would not stop the estate agent from continuing to practise. The NAEA also believes that agents should be regulated in a way similar to other bodies that operate in the house buying and selling process. There is regulation in regard to financial advisers, people advised in conveyancing and people involved in surveys—and yet the estate agents themselves are not regulated. That is surely a gap in protection for the consumer.
	If the Bill were to become law, millions of people would be better protected than they are at present. It is a modest but sensible step forward which I hope the Government will look upon sympathetically. I commend the Bill to the House.
	Moved, That the Bill be now read a second time.—(Lord Dubs.)

Baroness Byford: My Lords, it is a great pleasure to follow the noble Lord, Lord Dubs, who has brought an important Bill before the House. I shared his disappointment when I saw that the Government had not picked it up and run with it earlier when they were dealing with the Housing Bill. I shall not go over all the ground covered by the noble Lord, who has gone through it very clearly. I, too, have received a good briefing from Which? and the National Association of Estate Agents, for which I am grateful.
	I have a couple of specific questions for both the noble Lord and the Minister. The noble Lord said that the NAEA suggested that the Bill should cover lettings, which is probably sensible.
	Under proposed Section 27A(1):
	"The Secretary of State may by order require an estate agent to be a member of an independent consumer redress scheme".
	The provision only says "may". What happens if the estate agent does not wish to belong to such a scheme? I am not an expert in these matters by any means, but I cannot see what the counter-balance would be if the estate agent did not want to be involved. The noble Lord is proposing a scheme that he hopes will be desirable and to which people will feel that they should belong, but what will happen if they do not?
	The noble Lord mentioned home improvement packs, a subject that I have raised in the House on several occasions. I do not know whether the noble Lord or the Government—my dilemma is who to ask—have ever thought about how long those packs will be valid for? Will they be valid for six months or a year, or will certain parts have to be updated during that period? Might that have implications for what the Bill is trying to achieve? I am trying to be constructive, not destructive, because this is a very good Bill.
	I understand that at present if people consider there has been wrongdoing or they have not been dealt with properly by the estate agent, they appeal to a trading standards officer. Does the noble Lord view his scheme as taking a quicker and less expensive route or as having tighter controls and outcomes? I address that question to the Minister as well.
	In paragraph 7 of its briefing, the National Association of Estate Agents admitted that only 40 per cent of its members are members of the ombudsman scheme for estate agents. How realistic is the proposed scheme and how does the noble Lord anticipate getting full support for it? Having said that, I agree with the noble Lord that buying and selling a house is, apart from getting married, one of the most fraught times in one's life. I am not suggesting that marriages go wrong although, sadly, some do. But buying a house involves an enormous amount of capital and is a long-term commitment for many people.
	It is in all our interests to come up with schemes which help people and make things simpler for them, particularly in cases where they are wrongly advised. The noble Lord was right to highlight the fact that sometimes they are not given the right information at the time, nor told of offers made. I suspect that it is difficult to prove but there are ways of doing it.
	Lastly, why did the Government not include the new scheme in the previous Bill? Have they conducted more research since then that ties in with what the noble Lord, Lord Dubs, is trying to do? I thank the noble Lord for explaining the measure fully. I am sorry that my comments are brief, but he covered the issue well. I hope that my few questions might help him in advancing his Bill.

Lord Addington: My Lords, this Bill should have happened a long time ago. When we think about what is involved, it is painfully obvious that something should have been done. As I have said before, I have recently been through the process of buying and selling houses. The process can be fraught and there is an odd relationship with the person who is marketing and professionally representing you at the same time.
	There are also stereotypes that must be lived with—"well appointed" might mean that the walls may stand up only if the wind is not in the wrong direction and other such jokes. Only lawyers have more jokes against them than estate agents. One reason for opposing the Bill could be that we may be improving the status of one of the few professions that is held in lower public esteem than us—it is the only one that I can see at the moment. However, we should really have acted a long time ago. If the professional bodies within the industry are encouraging the Government, action should be taken.
	The Bill in front of us seems to be a good vehicle. If it is amended and expanded, that may be to the good. However, if this is not the right way forward, I hope that the Government will assure us that something else will happen shortly. I cannot see why we should wait. The only thing that would tempt me to smile on any process of waiting would be to hear that the measure would be guaranteed to get government time. If not, this Bill should have the full backing of the Government and Parliament.
	The most attractive proposal is in Clause 1, which states:
	"The Secretary of State may by order require an estate agent to be a member of an independent consumer redress scheme".
	I believe—I trust that this is correct—that that makes the proposal effectively compulsory and that people will know that; they will know the way forward.. The noble Lord, Lord Dubs, nods his head. That means that people know where to go and what to do. They know where to make complaints.
	I was probably less anti-estate agent before last night when I tried to cross at a pedestrian crossing and was nearly run down by a Foxton's decorated Mini as it came through a red light, but we will leave that to one side.
	Other complaints can be made in the process. For example, where do we complain when we discover, as I did, that we were not receiving the interest on a deposit on the house that we were buying? We had to chase hard to get it, because it was not offered. That is a comparatively small complaint, but there are others in the Bill. If people know where they can get an immediate response, they will feel more comfortable. The industry itself will respond more quickly because it cannot use the ultimate stalling tactic of going to the lawyers. Everything will be easier if we have something like this Bill in place. I hope that the Government will support the Bill. If they do not, they had better have a good reason and a timetable for a new proposal.

Lord McKenzie of Luton: My Lords, I am sure that we are all grateful to the noble Lord, Lord Dubs, for his full and helpful explanation of this measure, the Estate Agents (Independent Redress Scheme) Bill. The noble Lord's Bill raises important issues about how we should provide consumers with redress when they suffer at the hands of estate agents, and how we can improve and extend the provisions on redress in the Housing Act 2004.
	Let me say at the outset that the Government welcome the principles of the Bill and I am pleased to see that that is shared throughout the House. I am glad to have the opportunity to explain to your Lordships the Government's approach to these issues. It may be helpful for me to begin by going over the background to these issues, some of which the noble Lord also alluded to.
	In March 2004, the Office of Fair Trading issued a report on the estate agency market in England and Wales. The OFT report found that there was significant consumer dissatisfaction with estate agency services, which ranged from suffering serious abuse such as failure to pass on offers to concern about quality of service issues, such as poor administration by estate agents. The noble Lord, Lord Dubs, spoke strongly on that point.
	Estate agents have a key role in the housing market, and a hugely significant one. For most people, buying a house is the most expensive purchase they ever make, and sometimes the most stressful, for both buyers and sellers. It is vital that the market works well and that consumers are adequately protected against unfair practices.
	As regards consumer redress, the OFT recommended that more estate agents should subscribe to voluntary codes of practice, which provide redress for consumers and set service standards over and above the legal minimum. Because of the risk that that exhortation might not be heeded, the OFT recommended that the Government should take a power to require estate agents to belong to independent industry redress schemes. In its response to the OFT report in July 2004, the Government said that they intended to go further than the OFT's recommendations. We said that we would seek to take powers in the Housing Bill, which was then before Parliament, to enable the Secretary of State to approve one or more estate agent redress schemes and to require estate agents to belong to one. Some noble Lords referred to that earlier.
	As some noble Lords may recall, there was considerable support in your Lordships' House for that policy. There was also strong support for the view that the provisions in the then Housing Bill should allow a redress scheme to cover any relevant acts or omissions of an estate agent. Indeed that was the Government's view. However—and this is the point that the noble Baroness, Lady Byford, impressed on me—the House authorities ruled that the scope of the Housing Bill was not wide enough to enable redress schemes to cover general complaints about estate agents. A redress scheme under the Bill would need to be confined to complaints about estate agent services linked to the provision of a home information pack. So the Housing Act 2004 does contain provisions enabling the Secretary of State to approve redress schemes and to require estate agents in England and Wales to belong to one, but the scope of such schemes is much narrower than we had originally intended. Moreover, as we have always recognised, the Bill could not make corresponding provision for Scotland and Northern Ireland. The Housing Bill covered only England and Wales. Further legislation was therefore always contemplated.
	As the Government have therefore made clear, we would need further legislation to cover not only Scotland and Northern Ireland but also, following the decision over the scope of the Housing Bill, to enable estate agents redress schemes to address a wider range of complaints by consumers over the service provided by their estate agents. The Bill proposed by the noble Lord seeks to implement those changes. In effect, the Bill would repeal the Housing Act provisions and insert corresponding provisions into the Estate Agents Act 1979, but with the two important changes to the scope that we wish to see. The Bill is very similar to the one introduced in another place in the previous Session by the right honourable Alan Williams MP, which ran out of time before the election. As noble Lords know, the Government offered a handout Bill for this Session to achieve our intentions in that area, but no Member in another place was persuaded to take it up.
	I therefore fully support, on behalf of the Government, what the noble Lord is trying to achieve, which is the same as what the Government want to achieve. Those objectives are also shared by consumer groups and by many estate agents themselves and their representative bodies. Compulsory membership of redress schemes will improve standards of service and provide a cost-effective means of redress for consumers. That is necessary to overcome significant consumer dissatisfaction with estate agency services, which was brought out in the Office of Fair Trading report.
	Consumer access to independent redress in this sector is currently limited, with only around 40 per cent or so of estate agents belonging to the existing ombudsman for estate agents scheme. That means that many consumers who are dissatisfied by the response of an estate agent to their complaint only have the option of seeking redress through the courts, which can be difficult and costly, as noble Lords have recognised. The Government believe that all consumers buying and selling residential property in the UK should have access to a redress scheme to enable their complaints about estate agency services to be investigated and determined by an independent adjudicator. The availability of a free, independent and efficient redress scheme would be important to consumers in this vital market.
	Indeed, so supportive are we of what the noble Lord is trying to achieve that I assure your Lordships that we fully intend to bring forward government legislation, when parliamentary time permits, to implement these shared objectives. The noble Lord will ask, reasonably enough, when that may be. I can only say that it will not be in this Session. The Government will set out their procedures for the next Session in the usual time. I cannot anticipate the Queen's Speech. However, I can assure noble Lords that we fully recognise the importance of legislation on this issue.
	Your Lordships may ask why, then, we cannot give full support to this Bill. It is not as simple as that. The Government have their own programme for this Session. We and another place already have much business to get through. It is hard to see how the Bill could be enacted in this Session, given other pressures on time. Moreover, although the changes we wish to make to the provisions in the Housing Act may seem simple on the surface, achieving them is not as straightforward as it may seem. It is rather more complicated than simply seeking to transpose the provisions of the Housing Act to the Estate Agents Act 1979. The noble Baroness, Lady Byford, raised the point about sanctions if someone was not prepared to enter a redress scheme; indeed, that is one of the defective points in the current drafting of the Bill that would have to be catered for in full legislation.
	It was also asked whether the redress scheme could cover lettings. The Estate Agents Act 1979 does not do so. A case would have to be made for regulating lettings with regard to regulatory principles, and a proper cost/benefit analysis would need to be undertaken. That would be a matter for the ODPM.
	My noble friend Lord Dubs raised the question of what is happening on the consultation document that was promised. The Government have been considering the drafting of this document, but we have been considering carefully a number of legal points that arise over how the OFT proposals can be given legal effect. These matters are moving forward.
	I hope that will reassure noble Lords. We support the thrust of the Bill, but we must be neutral on it, as we cannot offer government support to ease its passage through both Houses. I hope, however, that your Lordships are reassured by what I have said about the Government's commitment to bringing forward their own legislation in due course.

Baroness Byford: My Lords, I am sorry that the measure was not included in the Minute. The reason for bringing this measure before the House is underlined by the fact that the Merits of Statutory Instruments Committee has drawn this and the following measure on the Order Paper to the attention of the House. The committee states:
	"We question whether the pilot programme, which will deploy only non-veterinarians drawn from the State Veterinary Service, will offer an adequate basis for assessing the wider use of 'lay testers'".
	I have several questions for the noble Baroness, Lady Farrington. The Explanatory Notes clearly acknowledge the fact that the use of non-veterinarians for testing purposes is a very sensitive issue for the profession. However, the NFU supports the measure as its members are as well aware as anyone, including vets, that it is undesirable to have a backlog of tests.
	I understand that about three years ago, after the foot and mouth epidemic, the statistics in regard to the late running of lay testing were challenged and that British cattle vets undertook a survey. The survey showed that 3,000 tests were waiting to be done. However, the results also showed that some of the parties surveyed did not exist or had given up farming, or that the TB test had been completed but had not been signed off by the SVS office because of staff shortages. So before we talk about the details, will the Minister confirm how many tests are outstanding and say whether she is confident that the situation of three years ago is no longer true and the figures apply? It is an enormously important point.
	The noble Baroness will also be well aware, because she has been spokesman on this topic for some time, of the Government's desire to see greater working in the farming community and improved animal healthcare. The most important way of achieving that is by the proper use of veterinary surgeons. At this stage I should perhaps declare an interest, as I am sure others will shortly, as an associate member of the BVA. It does an amazing job. Vets may well be called to a farm to respond to a specific problem that may be nothing to do with lay testing, but while on the farm notice that other matters are not quite as they should be. Their expertise is greatly valued. One of the BVA's big worries is that lay testing will jeopardise that close link. The Government should consider that very seriously.
	On the financial side, the vets will be paid for lay testing. However, if it is done by non-qualified people, that income will not go to practices which otherwise would have received it. As I am sure the noble Baroness will realise, there is still a question mark over the viability of large animal practices. The small practices are not the worry; it is the large ones. Every time one of those practices disappears or loses a partner or a vet, the response time and the mileage covered is increased and the service is closer to being jeopardised. If there are fewer such practices and they have to cover a wider area, it is likely that their fees also will increase. It presents a no-win situation. The Government are pushing on the one hand to try to improve animal health and welfare, but on the other, really through default, they may be jeopardising the very objective they are trying to achieve.
	The order deals with setting up the test programme, which we are told will last 12 months and involve about 1,100 tests. Will that number be broken down into a certain number of farms in certain areas? How do the Government propose to define their "test area"? That information would be helpful to the House. Will the information gained in doing the tests and from any observations made on the farm on a given day be passed back to the local vet who normally provides veterinarian services to the farm, or will that vital information be lost? That issue has not been addressed at all.
	Finally, I turn to paragraph 34 of the Merits of Statutory Instruments Committee report, which states:
	"We note that in 2003 DEFRA's initial proposals for lay testing was met with extensive disagreement on the part of the profession (46 out of 88 responses).
	It then goes on to say that it recognises that Defra has responded by deciding to conduct the pilot programme before deploying lay testers more widely. However, we are not clear that the pilot programme as planned will necessarily produce the sort of evidence needed to meet some of the concerns expressed, and I would be glad for clarification on that point. This statutory instrument raises important issues about the way the department views the value of vets per se and also how it will establish and maintain that vital link between keeping the health and welfare of animals on the farm in its main criteria for future welfare. I beg to move.
	Moved, That an humble Address be presented to Her Majesty praying that the Order, laid before the House on 25 July, be annulled (S.I. 2005/2015). [8th Report from the Merits Committee]—(Baroness Byford.)

Baroness Byford: My Lords, it only shows how diverse this topic is that we now have a change of batting order on the Government Benches because, instead of being a Defra veterinary problem, it now becomes a Defra/Department of Trade and Industry problem. I welcome the noble Lord and am grateful that he will respond to debate.
	Again, I am raising this issue because the Merits Committee brought it to the attention of the House. Its summary stated:
	"This order contains DTI's proposals for increasing competition in the market for the supply of prescription-only medicines for veterinary use. The proposals have been subject to consultation with interested parties, but controversy continues to surround certain elements of them, not least because of concerns expressed by a large number of veterinary surgeons".
	As the noble Lord was in his place while we debated the previous order, I shall not go on at great length about the financial implications, because that is one of the major problems, of which I am sure he is well aware.
	The Explanatory Memorandum states that the order prohibits veterinary surgeons from charging a fee for the issuing of prescriptions for a period of three years. I direct the Minister's attention to paragraph 15 of the Merits Committee report. It states:
	"DTI carried out a consultation process on its proposals from February of this year. The EM states that there were 105 responses, of which the majority (75) came from individual veterinary surgeons. In general, veterinary surgeons and some manufacturers opposed the proposals, while those consumer groups who responded were in broad support".
	Of those 105 responses, 75 were from vets. How many were manufacturers and how many individuals or consumer groups made up the bulk?
	I understand from paragraph 16 of the report that there has been no meeting of minds between the DTI and the veterinary surgeons on the issue. So we know where we stand from the very start. I should like to share with noble Lords the British Veterinary Association's position, on which it has sent us a brief, in case noble Lords have not received it. Veterinary practices have traditionally subsidised the cost of their consultation fees with the income that they receive from the sales of veterinary medicines. If the legislative changes are successful in opening up the market for POMs, it is likely that that practice will have to cease. Inevitably, if that occurs, veterinary surgeons will naturally seek to maintain the same level of income by increasing some of their consultation fees—the Minister is nodding; he must be well aware of that—which will have to be borne by the consumer at the end of the day.
	The veterinary profession feels that there is a lack of transparency in the cost of prescriptions to clients that the new order promotes. The Competition Commission was highly critical of the profession for failing to provide itemised invoices to clients. The profession has risen to that challenge, yet its members now find themselves actively encouraged by the Government to hide those very costs of providing a prescription in their overall consultation fees. We seem to be going round in a rather funny circle. The frustration that that has engendered has been further enhanced by the fact that the cost of providing a prescription will have to be borne by all clients, irrespective of whether they require a prescription or indeed veterinary medicine.
	My concern, as I explained earlier, is obviously for the health and welfare of animals. If, as a result, we see a fall in medicine sales and fewer consultations, that will have the same effect on-farm visits, as I described. Any reduction in the number of veterinary surgeons with expertise and experience in farm animal medicine could have serious consequences for the biosecurity of the UK's food production in animals. I wish to reply to the Government's original response to the consultation. I quote:
	"The Government also remarks, 'We are sorry that veterinary surgeons see this [measure] as an attack on their professional status, as neither the Competition Commission nor the Government intended it this way'. However"—
	this is the Government's comment—
	"the profession might be forgiven for feeling a little hunted given the way its legitimate concerns have been ignored".
	I am very grateful that the noble Baroness, Lady Farrington, is still here. She will be able to share her thoughts with the Minister because the two departments overlap so clearly. The briefing goes on:
	"Perhaps one of the most revealing comments is made near the beginning of the response where the Government notes that 'the Competition Commission [was asked to look] at the market for veterinary medicines rather than veterinary services'. Throughout, the Government has failed to take account of the wider picture and that, coupled with its seemingly blind adherence to market dogma, has characterised the whole sorry saga from the start".
	I need not add to that, as it is self-explanatory. I beg to move.
	Moved, That an Humble Address be presented to Her Majesty praying that the Order, laid before the House on 7th October, be annulled (S.I. 2005/2751) [11th Report from the Merits Committee].—(Baroness Byford.)

Lord Kimball: My Lords, I can add very little to what has been said by my noble friend Lord Soulsby. We have a difficult situation in treating animals. I am thinking particularly of horses. The charge a veterinary surgeon can make will often depend on the fact that some of the charge can be recovered in the prescription he writes. We do not want to reduce the number of calls a veterinary surgeon may make. He may be treating an animal, but the animal does respond to that treatment because he has got it wrong. He will need to change the treatment.
	I was extremely interested in the "Country File" programme of 7 November, which explained how we can go to Ireland and buy prescriptions at a much reduced cost. If you have a horse that is on Butazolidin, you do not have to go back to your own veterinary surgeon for another prescription. You can go to Ireland, fill your pockets with the drug, and come back and continue the treatment. As with so much in the profession, this is an extremely complicated business. We must proceed with great care.
	I would like to see the order withdrawn at this stage in order to allow us to consider it further, particularly in view of the costs involved.

Baroness Byford: My Lords, I almost feel tempted to put the matter to a vote, but I will not do that—the noble Baroness's eyes just hit the deck. Quite clearly, there is a problem. Our party of all parties has always been keen on competition, so this Motion must seem slightly strange—the Minister did not draw that to my attention, so I draw it to his. But the whole question is that I do not know whether we are necessarily comparing like with like—and I shall return to that point.
	The point made by the noble Lord, Lord Addington, about his concerns that treatment might be put off is very valid. I accept that vets are "piggy in the middle" in that regard; I am more than happy with that.
	The noble Lord, Lord Soulsby, touched on several very important issues and particularly referred to the work of RUMA. I should like to return to that because, in human health—as we all know when we are suffering from a cold—one does not get a prescription for an antibiotic very easily at all these days from our doctor; indeed, it is the same with vets. There is a real issue about prescribing drugs to freely, that then animals whether human, bovine or of whatever sort, builds up a resistance. That is a worrying problem. I know that it is only a trial, but it is something that the Government should keep well in mind when it goes ahead, because it is a very valid point.
	The point that my noble friend made that you can get prescriptions, or will be able to get them, from anywhere, and particularly from the Internet, is something else that the Government should bear in mind. Some Internet sales on other products—although I am not suggesting that it is the case with the products that we are discussing—have been quite questionable. The need to ensure that the product being sold is the product that is supposed to be sold and that it is up to the standard that should be sold is something that the Government should be aware of—and I hope that they are.
	The noble Lord, Lord Kimball, raised an important issue. Having had horses—and my last one unfortunately ended up on Bute—I know that it is easy to go across the water and come back with cheaper prescriptions over there. In fact, the use is more extravagant perhaps than if the drugs were prescribed and the animals were looked after by a veterinary surgeon. That is another important issue that the Government need to address.
	On the breakdown of my questions earlier, if the Minister could tell me specifically who responded—the person and the name of the group—I would be grateful. The Minister alluded to the fact that he felt that the measures should reduce the question of the price overall. Yes, I believe that in pure commercial terms, he is right that it will; but I suspect that for the consumer who normally uses a veterinary practice, it may well not do so, because prices will have to be raised in other ways, be it through consultation or whatever, to maintain their practice.